Transcript Jury Selection - Columbia Law School

Jury Selection
Marissa Eisenberg
Seeds of Social Science?
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1936: Attorney For the Defense, Clarence Darrow 5 Esquire Magazine 36 (May 1936)
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Prosecutor should look for:
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Prosecutors should avoid:
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Irishmen because he is emotional, kindly, sympathetic
Englishman because he is for individual rights
Germans… maybe not because he “has not been among us long, his ways are
fixed by his race” etc
Presbyterians because “he is cold as the grave”
Wealthy men, because prisons stand for capitalism
1982: Modern Trials (2D ED. 1982) Melvin Balli Sr
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Racial Considerations: you want people on the jury as the same race as
your client
Statisticians: plaintiffs don’t want them; they’ll think you’re asking for too
much
Artists: sympathetic, good for plaintiffs and criminal defendants
Farmers: reject, live outside the law
What is a Voir Dire?
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Literally: French: "to speak the truth"
A preliminary examination of a prospective
juror by a judge or lawyer to decide whether the
prospect is qualified and suitable to serve on a
jury
3 Phases of Voir Dire

Phase One
 The judge informs the entire jury panel
of the nature of the case and introduced
the attorneys. The judge then asked the
prospective jurors several questions
designed to elicit their reactions to the
alleged offense in the case.
30 STNLR 491 at 496
3 Phases of Voir Dire
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Phase Two
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12 individuals from the venire were placed in the jury box, and the judge
asked them in turn to state their names, addresses, occupations, and the
occupations of persons living with them. In most of the cases, the judge
also asked the prospective jurors to state their length of residence at their
present address, their employment for the previous 5 years, the ages of
their children, and all instances of prior jury service. In addition, several
judges inquired whether the prospective jurors had a close friend or
relative who either was involved in law enforcement or had been the
victim of a crime. The judge also posed several questions designed to
disclose any close associations between the potential jurors and key
elements of the case.

If a juror had some association with the case, the judge asked whether that association
would preclude the juror from making a fair and impartial evaluation of the evidence
and merits of the case. Any juror who responded in the affirmative was excused, sent
back to the jury room and replaced by a new juror, who was then subjected to the
second-phase questioning. All jurors who responded that they had no association with
the case, or an association that would not preclude them from fairly and impartially
evaluating the case, proceeded to the third phase of voir dire.
30 STNLR 491 at 496
3 Phases of Voir Dire
Phase Three
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The prosecutor and defense counsel exercised peremptory challenges.
First, the prosecution exercised as many of its allocated
number of peremptory challenges as it desired; the defense
was then given the same opportunity. The judge replaced
the excused jurors, and the process was repeated with
respect to the newly impaneled venire members. Any
prospective juror accepted without challenge by both
attorneys became a member of the jury and was no longer
subject to challenge. The jury finally was filled when the
12th member of the venire successfully completed phase
three without being excused.
30 STNLR 491 at 496
“The Effects of Peremptory Challenges on Jury
and Verdict: an Experiment in a Federal District
Court”
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Hans Zeisel and Shari Seidman Diamond, 30 Stanford Law Review 491
(1978)
Designed an experiment to probe the effects of voir dire on the outcome of
cases and the accuracy of attorneys in judging the potential jurors
Experiment “attempted to secure [this] missing information by asking the
peremptorily excused jurors to remain as shadow jurors in the court room and
to reveal at the end of the trial how they would have voted”
Experiment contained:
12 criminal trials before 3 judges
 Only included trials expected to last < 2 weeks
 (had anticipated civil cases as well, only conducted the study on 3, excluded from
data)
Authors acknowledge up front that “ the 12 cases that formed the basis of our study
are not a probability sample of anything”; hoped the research would lead to future
research
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“The Effects of Peremptory Challenges on Jury and
Verdict: an Experiment in a Federal District Court”
Cont.
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Metric: They designed a “rough performance” index to evaluate the rates
of Prosecutor dismissals of hostile or friendly jurors
 For Instance: there are 28 Potential Jurors, where:
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22.2 would have voted guilty
5.8 would have voted not guilty
The Prosecutor has 6 peremptory challenges. She wins:
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Best Performance: use all 6 on the 5.8 “voting not guilty” jurors  (22/22)=100%
of jurors voting “guilty”  Score of +100
Worst Performance: uses all 6 on only “voting guilty” jurors  (16.2 /22) =
73.6% of jurors voting “guilty”  Score of -100
Null**: doesn’t change the composition  (17.48/ 22) = 79% of jurors voting
“guilty”  Score of 0
** Means its my term, not theirs
“The Effects of Peremptory Challenges on Jury and
Verdict: an Experiment in a Federal District Court”
Cont.
CALCULATING THE INDEX
For Instance: Cont.
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Prosecutor selection produced: 91.1% “voting guilty jurors”
Score is determined by:
1)
Selecting Positive/negative value – did the prosecutor increase the
percentage of favorable or “voting guilty”?
•
2)
Absolute value – Difference between the % of guilty votes in the
original venire (79) and the % after (x)
•
3)
│79-91.1 │ = 12.1
Normalized – Divide by the maximum possible improvement (10079=21)
•
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91.1 – 79= A Positive Number ( + )
12.1 / 21 = 58
Calculation was mirrored for Defense Counsel
“The Effects of Peremptory Challenges on Jury and
Verdict: an Experiment in a Federal District Court”
Cont
Attorney Performance Index
-------------------------------------------------------------------------------
Case No.
Prosecutor
Defense
------------------------------------------------------------------------------
1
+23
+46
2
-59
+6
3
+44
+30
4
-20
+44
5
+31
+48
6
-61
-11
7
+9
-10
8
-32
-62
9
0 [FNa1]
+12
10
+58
+46
11
+62
+36
12
-61
+19
-----------------------------------------------------------------Average (Mean)
- 0.5
+17.0
-----------------------------------------------------------------Average Fluctuation
Around the Mean
+-38
+-25
-----------------------------------------------------------------FNa1. The prosecutor exercised only one challenge,
and the challenged juror
The Effects of Peremptory Challenges on Jury and
Verdict: an Experiment in a Federal District Court
Cont.
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Must be noted that they are aware of many of the design flaws and are not asserting
that it is generalizable
Methodological Critiques?
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Sample Size, though readily admitted by the Authors
Basic Assumptions formed the basis for the numbers used to make the calculations
Authors were unable to pretest the “real” jurors, so they made assumptions about these jurors first
impressions, which may have had a bias
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To calculate how “real jurors” voted, Authors used the first vote of the real jury. If the jury originally split 84 guilty/nonguilty, they would assume that each member had a 2/3rd chance of voting guilty. So if 6 people
had been dismissed by the voire dire, Authors assumed that 4 of 6 that were actually on the jury voted guilty,
and 2 voted not-guilty.
All jury selection experiments will have problems that arise from using specific cases:
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The defendant was either guilty or was not guilty could have picked the best jury possible and
they still would have found him guilty… assumes an error where there was not necessarily one (or
assumes no difference where there was a real difference in the juries)
The weight of the evidence is different in every case
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To say that lawyer A is “better” at jury selection than lawyer B, because A had a higher score, ignores the
specific circumstances of the case. This type of experiment cannot tell us if if in the same situation, how B
would have performed
The Effects of Peremptory Challenges on Jury and
Verdict: an Experiment in a Federal District Court
Cont.

Methodological Critiques?


Sample Size, though readily admitted by the Authors
Basic Assumptions formed the basis for the numbers used to make the
calculations
Authors were unable to pretest the “real” jurors, so they made assumptions about these
jurors first impressions, which may have had a bias


To calculate how “real jurors” voted, Authors used the first vote of the real jury. If the jury
originally split 8-4 guilty/nonguilty, they would assume that each member had a 2/3rd chance
of voting guilty. So if 6 people had been dismissed by the voire dire, Authors assumed that 4
of 6 that were actually on the jury voted guilty, and 2 voted not-guilty.
All jury selection experiments will have problems that arise from using specific
cases:


The defendant was either guilty or was not guilty could have picked the best jury
possible and they still would have found him guilty… assumes an error where there was
not necessarily one (or assumes no difference where there was a real difference in the
juries)
The weight of the evidence is different in every case

To say that lawyer A is “better” at jury selection than lawyer B, because A had a higher score,
ignores the specific circumstances of the case. This type of experiment cannot tell us if if in
the same situation, how B would have performed
The Effects of Peremptory Challenges on Jury and
Verdict: an Experiment in a Federal District Court
Cont.

Methodological Critiques? Cont.

All jury selection experiments will have problems that arise
from using specific cases:


The defendant was either guilty or was not guilty could have picked
the best jury possible and they still would have found him guilty…
assumes an error where there was not necessarily one (or assumes no
difference where there was a real difference in the juries)
The weight of the evidence is different in every case

To say that lawyer A is “better” at jury selection than lawyer B, because
A had a higher score, ignores the specific circumstances of the case.
This type of experiment cannot tell us how B would have performed in
the same situation
The Joan Little Case
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John B. McConahay, Courtney J. Mullin, and Jeffrey
Frederick
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County Jailer Alligood found dead, inside a cell which
had been occupied by Joan Little.
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41 Law and Contemporary Problems 205 (Winter 1977)
Alliwood: 64 year-old, white male, found with ice pick
puncture wounds through his body and semen on his leg
(pants and shoes were outside the cell)
Little: 20 year-old black female
Little turned herself in later, with an attorney present
5 week trial, jury took 78 minutes to acquit her of all
charges
Joan Little Cont
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Mounted a massive defense team of social scientists,
attorneys, etc
5 “streams of data” used to determine fitness of jurors:
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Survey conducted of Wake County  mathematical model
of the ideal juror
Behavior of potential juror, as measured by authoritarianism
scale
Body Language (kinesics and paralinguistic behavior)
Voir Dire experience/ Common Sense
Ms. Little’s opinion- how she felt about the juror
Joan Little Cont.
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Survey and Model: $35,000 enterprise
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Survey of local attitudes, demographic information, “appropriate
measures of the attitudes or opnions we wish to predict ie belief in
the innocence or guilt of the accused
Lots of complicated stats, put it into AID computer program 
presto chango predictive equation for jurors’ opinions based
onto categories they fall into, which uses other criteria, such as
religion, type of magazines they read, sex, etc. to calculate
Pros:
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Jurors can’t (don’t) lie to the equation… it makes predictions based on facts
The questionnaires used to gain the information to put into the equation give
a general idea of the jury pool.
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Analogy: Blackjack counting cards. If they know they have “better” people left in
the pool, they’ll pass on people they might have taken
Joan Little Cont
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Authoritarianism Scale:
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“Authoritarians are rigid, racist, anti-semetic, sexually repressed, politically
conservative, highly punitive individuals” who “takes out all of his or her
pent-up hostility and frustration upon those perceived to be in violation
of the conventional norms of society.”
3 Social Psychologists observed potential jurors in the court room
behavior on their:
Rigidity
 Sexual prudery
 Introspectiveness
And gave them a rating of 1-30 of Authoritarian-ness
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Sounds ridiculous right? (massive reliability problems, validity problems,
objectiveness problems, un-blind, arbitrary, etc)
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Average person’s score: 20
Average of all those interviewed for this jury: 21.02 (not ss)
Average of the 16 /12 jurors:14.03 /12.95  they were doing something right
Joan Little, Cont.
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Body LanguageGauging if they were pro-defense or proprosecution, based on their levels of anxiety
 5 variables:
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Body movement
 Body orientation
 Body posture
 Eye contact
 Hand movement
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Looked for patterns of behavior
Each observer wrote down their assessment on a scale
of 1-5, independent of other observers
Joan Little Cont
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Put it all together:
Correlated the authoritarian scale with pro-defense
scale and found they were highly correlated (.79),
with highly authoritative measures correlated with
pro-prosecution dispositions
 They would literally huddle and talk about the
calculations, and if Ms. Little had an opinion about
their final decision, she would state it
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Problems?
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Seems pretty unscientific for social “science”,
yet it worked (and usually does)
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It isn’t an experiment, or really a study, in any
other way than a case study.
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However: As Michael Saks points out, without a
control, one is hard pressed to call it scientific
Cannot be replicated
Can you ever make an experiment?
Future Implications
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Only defense use models, tests, “scientific means” of
determining who to exclude. Prosecutors are left using only gut
feel, (which may be ineffective over the aggregate). Are there
moral problems with this? Should prosecutors be allowed to use
the same sort of techniques to exclude jurors who are likely to
acquit? Are there constitutional issues?
Does it matter if it isn’t as “scientific” if it works? Remember
that it doesn’t need to pass a Daubert standard because it isn’t
being submitted to the court.
Is there a chance that the voir dire does as much to influence the
jurors as it does assessing their pre-held ideas? Is there a
“Heisenberg Uncertainty” principle at work?